174 F.

3d 1150
1999 CJ C.A.R. 2459

W.A. MONCRIEF, Jr., as independent executor

and personal
representative of the Estate of W.A. Moncrief,
deceased;
W.A. Moncrief, Jr., individually, as Trustee for the
Lee
Wiley Moncrief Trust, as Trustee for the Tom O.
Moncrief
1967 Trust, and as Trustee for the William Alvin
Moncrief
III Trust; Charles B. Moncrief, individually and as
independent executor and personal
representative of the
Estate of W.A. Moncrief, deceased; Richard W.
Moncrief, as
independent executor and personal
representative of the
Estate of W.A. Moncrief, deceased, and as
Trustee for the
RWM 1988 Trust; Michael J. Moncrief,
individually and as
Trustee for the Michael J. Moncrief Grantor's
Trust;
Richard Barto Moncrief, individually, and Wade
W. Wiley,
Jr., as Trustee for the Richard Barto Moncrief
1988 Trust;
Plaintiffs-Appellants/Cross-Appellees,
 v.
WILLISTON BASIN INTERSTATE PIPELINE
COMPANY; and MDU
Resources Group, Inc.,
Defendants-Appellees/Cross-Appellants.

Nos. 97-8087, 97-8088.

United States Court of Appeals,

Tenth Circuit.

April 20, 1999.

William Pannill, Pannill, Moser & Barnes, L.L.P.,

Houston, Texas (Roy L. Barnes, Pannill, Moser &
Barnes, L.L.P., Houston, Texas, and Craig Newman,
Casper, Wyoming, with him on the briefs) for
Appellants/Cross-Appellees.

Daniel S. Kuntz, Zuger, Kirmis & Smith, Bismarck,

North Dakota (James S. Hill, Rebecca S. Thiem, Zuger,
Kirmis & Smith, Bismarck, North Dakota, and Frank D.
Neville, Casper, Wyoming, with him on the briefs) for
Appellees/Cross-Appellants.

Before PORFILIO, McWILLIAMS, and ANDERSON,

Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

1 This is a diversity action alleging breach of a 20-year

contract (July 7, 1976--July 6, 1996) for the purchase of
natural gas under leases on properties located in
Converse County, Wyoming.1 The plaintiffs' complaint
seeks, inter alia: (1) damages for alleged underpayment
for delivered gas and for the defendants' refusal to buy
 gas after November 1993; (2) a declaratory judgment that
following deregulation of natural gas prices the contract
continued to obligate the defendants to pay for gas at the
highest rate prescribed or permitted by Congress during
regulation; and (3) a declaratory judgment that in addition
to "native" gas produced from the plaintiffs' wells, the
defendants were required to take and pay for "makeup"
gas--that is, gas purchased by the sellers from outside
sources, injected into the field to maintain pressure for oil
production, and then extracted from the field along with
"native" gas and delivered to the defendants.

2 The district court held that the defendants breached and

wrongfully repudiated the contract in 1993, that the
plaintiffs are entitled to damages from August 13, 1993,
through the end of the contract term on July 6, 1996, and
that the defendants were obligated to purchase makeup
and all other gas, up to the contract limit of twelve million
cubic feet per day, delivered by the sellers from August
1993 to the end of the contract term. However, the
district court rejected the plaintiffs' theory that the
highest rates prescribed or permitted by Congress during
periods of price regulation lived on after deregulation as
the applicable contract price. Instead, the court
determined sua sponte that the favored nations clause
issue had been tried by implied consent, and held that the
favored nations clause of the contract applied to set the
contract price after August 1993. On its own motion, the
court reopened the case for the introduction at a later
date of evidence of damages under the favored nations
clause. Following the subsequent reopened trial, the court
ruled that the contract price for gas from August 13, 1993,
through July 6, 1996, was set by reference to prices
charged under two contracts introduced into evidence by
the plaintiffs after the first trial. Applying those prices to
the types and quantities of gas covered by rulings
described above, and after subtracting amounts the
plaintiffs actually received, the court awarded the
 plaintiffs damages in the amount of $15,551,455.00, plus
costs. The court declined to award prejudgment interest.

3 On appeal and cross-appeal, the parties, respectively, do

not challenge the district court's rulings that the plaintiffs
are not entitled to damages for any period prior to August
13, 1993,2 and that the defendants wrongfully repudiated
the contract in 1993, entitling the plaintiffs to damages
for the remaining approximately two and a half years of
the 20-year contract. All the other rulings are variously
contested by one party or the other.

4 After full consideration of the record, and for the reasons

stated below, we affirm the district court's rulings that
the defendants breached and wrongfully repudiated the
contract in 1993, and that the plaintiffs are entitled to
damages from August 13, 1993, to July 7, 1996. We also
affirm the district court's ruling that the last, highest
prices under government regulation did not survive
deregulation as applicable prices for gas under the
contract. We reverse the district court's rulings that the
favored nations clause of the contract applies and
establishes damages, and that the defendants were
obligated to purchase gas not attributable to lands
committed to the contract by the plaintiffs, including
"makeup gas." Accordingly, we vacate the judgment, and
remand the case for a determination, on evidence in the
record prior to the court's reopening order, of damages
from August 13, 1993, to July 7, 1996. Furthermore,
because the district court's conclusion that prejudgment
interest was not warranted in this case was premised on
its determination that plaintiffs' damages were to be
computed by reference to the favored nations clause, a
determination we hold to be improper, we vacate the
district court's prejudgment interest determination and
remand to the district court for a determination regarding
whether prejudgment interest is warranted in light of our
treatment of the case.
BACKGROUND

5 The district court thoroughly laid out the facts of this

case, and the course of government regulation of
interstate and intrastate natural gas prices under the
Natural Gas Policy Act (NGPA), 15 U.S.C. 3301-3432
(1982) ( 3311-3348 repealed 1989), in its published
opinion on the parties' cross-motions for summary
judgment, Moncrief v. Williston Basin Interstate Pipeline
Co., 880 F.Supp. 1495 (D.Wyo.1995), and in its Findings of
Fact and Conclusions of Law issued on August 16, 1996, 3
J.A. 1170. We restate, summarize and add to those
opinions only those facts and references to the NGPA
which are necessary to our decision.

6 W.A. Moncrief and Tex Moncrief were professional oil and

gas businessmen, based in the Moncrief Building in Fort
Worth, Texas, whose joint ventures in that business
began in 1945 and eventually covered at least five states.
In 1974, they joined with Woods Petroleum Co. ("Woods")
to drill 12 wells in the Powder River Basin in eastern
Wyoming. One of those wells discovered an oil field which
was designated as the Powell II Unit. The field was a
retrograde gas-condensate field, that is, oil and gas
existed in a gaseous state in the reservoir. The land
overlying the reservoir was owned by other parties, to
whom the Moncriefs and the other working interest
owners paid production royalties.

7 In 1976 the Moncriefs and Woods, which acted as the

Moncriefs' agent, entered into a 20-year contract with the
Montana-Dakota Utilities Company (later named MDU
Resources, Inc.) (hereinafter "MDU") for the sale of
natural gas produced from the Powell II Unit, with
interests in specified sections in Townships 39 and 40
North, in Converse County, Wyoming. Interests in
additional lands in Converse County were added to the
contract by amendment in 1978 and 1979. MDU later
 formed Williston Basin Interstate Pipeline Company
(WBIPC) as a wholly-owned subsidiary, and assigned its
gas contracts to it in 1985.3

I. Price

8 The contract was entered into at a time of supply

shortage and, therefore, in a seller's market. Also, since
intrastate sales of gas were unregulated at the time,
Woods and Moncrief favored contracting with MDU since
the sales could be for the intrastate Wyoming market and
could command a higher price than was available for
interstate sales.

9 The pricing provisions of the contract reflect these

circumstances. The contract provided what, for ease of
reference, can be called a base price (pp 7.1 and 7.2); two
price escalator provisions--a regulated "area rate" clause
(p 7.4) and a "favored nations" clause (p 7.6); and a clause
providing for the renegotiation, at the seller's option, of
prices once government regulation of interstate gas
prices ceased (p 7.5). Those provisions, in relevant part,
are as follows:

ARTICLE VII

Price

10
Buyer shall pay Seller for the gas delivered hereunder in
accordance with the following schedule:

11 7.1 For the period commencing on the date of initial

delivery of gas hereunder, until January 1, 1978, a price of
$1 per million Btu.

12 7.2 The price shall be increased 1.5cents per million Btu

on January 1, 1978 and on each subsequent January 1
during the term hereof.
13
....

7.4 If the Federal Power Commission, or any successor or

14 other governmental authority having jurisdiction in the
premises, shall at any time hereafter prescribe or permit,
for the pricing area in which the properties are located, a
higher just and reasonable area rate including all
adjustments for the same type of gas as committed
hereunder than the price herein provided to be paid, then
the price hereunder shall be increased, effective as of the
date such higher price is prescribed, to equal such higher
rate.

15 7.5 In the event the regulation of the price at which

natural gas is sold in interstate commerce ceases, then
Seller shall have the right to request a redetermination of
the prices at which natural gas is to be sold hereunder.
Buyer shall notify Seller of the date of deregulation in
writing and any request for redetermination shall be made
to Buyer in writing and shall in the first instance be made
during the six (6) month period immediately following the
effective date of such deregulation, and subsequently
during the six (6) month period immediately preceding
each anniversary of the effective date of such
deregulation. Buyer shall notify Seller thirty (30) days prior
to each anniversary date of deregulation so that Seller
may request redetermination. If Seller shall make any
such request, representatives of Buyer and Seller shall
promptly meet and attempt to determine the fair value of
gas deliverable hereunder for the then remaining term of
this Agreement commencing in the first instance on the
date such request is made and subsequently on each
anniversary of the effective date of such deregulation, but
in no event shall the value so determined or to be
determined pursuant to the further provisions of this
paragraph result in a price which is less than the price
otherwise applicable hereunder....
16 7.6 In the event a bonifide [sic] utility company or other
pipeline company enters into a gas purchase contract
with any Seller for the purchase of gas of similar quality
and quantity from lands located East of the Continental
Divide in the State of Wyoming, whose terms call for a
higher price to be paid from time to time than the then
effective price contained herein, the prices herein
contained shall be adjusted to reflect such higher prices
on the date of first delivery of gas and from time to time
thereafter, under the referenced contract.

17 8 J.A. 3538-40.

18 Moncrief was never paid the base price. A short while

after the contract was signed, the Federal Power
Commission (FPC) increased its national rate for new
interstate gas to $1.42 per million British thermal units
(MMBtu), and MDU paid that rate when deliveries began.
Two years later, Congress enacted the NGPA, which
extended federal regulation to the intrastate natural gas
market for the first time. In so doing, the NGPA divided
the intrastate gas market into several categories, and
made a distinction between gas brought into production
after the statute's passage, which was governed by 102
of the new statute, and gas produced pursuant to an
intrastate gas contract in existence in 1978, governed by
105. Section 105 set a ceiling price for gas delivered
under existing contracts, providing that the maximum
lawful price for such gas was the regulated price set for
new gas under 102. After Woods insisted that it and
Moncrief were entitled, under the contract, to an amount
equal to the 102 rate for new gas, MDU began paying
the 102 rate in October 1979 and continued doing so
until January 1985, when most of the NGPA price
regulations expired. See 15 U.S.C. 3331(a) (1982)
(repealed 1989). The 102 rate in December 1984 was
$3.845 per MMBtu, and MDU was paying that amount to
Moncrief.
19 The district court found most of the following facts.
Anticipating deregulation, in June 1984 MDU sent a letter
to its natural gas sellers, including Moncrief, proposing a
price of $2.25 per MMBtu for deregulated gas effective
January 1, 1985. Representatives of MDU and WBIPC later
met with the sellers, and during those meetings WBIPC
offered to pay $2.25 per MMBtu, inclusive of production
tax reimbursement, for deregulated gas. WBIPC also
offered an additional 50cents per MMBtu for natural gas
produced during 1985 if the seller agreed to execute a
contract amendment releasing MDU/WBIPC from any past
claims under the contract and providing greater flexibility
to WBIPC under the contract. Ronald Tipton of WBIPC met
with the Moncriefs on August 8, 1984, and February 28,
1985, to discuss these proposals with respect to the
contracts WBIPC had with W.A. Moncrief and Tex
Moncrief. The Moncriefs did not agree to amend their
contract but stated that they would not sue WBIPC.
Starting in January 1985, the pipeline paid Woods $2.25
per MMBtu for Moncrief's interest in the gas purchased
under the contract, and continued to pay that price during
1985 and 1986.

20 On October 3, 1986, WBIPC sent a letter to Moncrief

stating its intention to reduce the price that it was paying
for natural gas effective January 1, 1987. On March 16,
1987, WBIPC sent another letter to Moncrief setting forth
WBIPC's proposal to pay $1.75 per MMBtu and requesting
that Moncrief sign a proposed contract amendment that
would offer WBIPC greater flexibility under the contract.
WBIPC representatives Ronald Tipton and Dennis Haider
met with Tex Moncrief on April 28, 1987, to discuss
WBIPC's proposal to pay $1.75 per MMBtu. At this
meeting, Tex would not agree to the proposed contract
amendment.

21 During the 1984, 1985, and 1987 meetings with MDU and
WBIPC representatives, neither W.A. Moncrief nor Tex
 Moncrief asserted that the contract price remained at the
last regulated price prior to deregulation of natural gas
prices. During these meetings, neither W.A. Moncrief nor
Tex Moncrief stated that the price of the gas was a
regulated price under NGPA 105(b)(3).

22 WBIPC paid Woods or its successors $1.75 per MMBtu for

Moncrief's gas produced from January 1, 1987, through
October 31, 1993. WBIPC provided monthly statements to
Woods and its successors which showed the prices paid
for the gas. Woods and its successors provided monthly
settlement statements to Moncrief which showed or
allowed Moncrief to determine the price WBIPC was
paying for the gas. Moncrief had employees who reviewed
the statements received from the operator and who were
specifically charged with the responsibility to determine
that the prices received for gas sales were correct under
the applicable contracts. In addition, internal summaries
of the operator reports and prices paid were prepared by
Moncrief's employees. These reports were discussed with
and readily available to Tex Moncrief. These payments
were accepted by Woods (or its successors) and Moncrief
without reservation or objection made to WBIPC as to the
price paid. WBIPC relied upon Moncrief's acceptance of
these prices paid by it from 1985 to 1993.

23 From 1985 to August 1993, the Moncriefs made no claim

that any provision of their contract with MDU mandated
prices higher than the $2.25/$1.75 per MMBtu paid by
WBIPC, and WBIPC made no assertion that the price
should be the lower contract base price.

24 On August 9, 1993, Tex Moncrief sent a letter to WBIPC

stating for the first time his position that the contract
price in effect was the December 1984 NGPA 102 price
of $3.845 per MMBtu plus tax reimbursement. He sent a
similar letter on August 12, 1993. Neither Moncrief nor
WBIPC construed these letters as a request for price
 redetermination under p 7.5 of the contract.

25 On November 11, 1993, Moncrief sent a letter to WBIPC

stating that the contract price after January 1, 1985 was
established under p 7.6, the favored nations clause.
Plaintiffs later abandoned that position in litigation and, in
their Second Amended Complaint, they asserted, as
alternative arguments, that the contract price of the gas
was either the regulated 102 price in December 1984
($3.845), or the 105(b)(3) ceiling price in December 1992
($6.371).

26 WBIPC, in turn, asserted that in and after 1985 the

contract price was in actuality the base price which, with
annual increases under p 7.2, amounted to $1.23 per
MMBtu in 1993. It also informed Moncrief that effective
November 1, 1993, it would no longer purchase gas under
its existing contracts. This eventually resulted in the
wrongful repudiation ruling by the district court which
WBIPC does not appeal.

II. Quantity

27 The district court also found the following facts regarding

the issue of "makeup" gas. In the late 1970s, MDU
became aware of the Powell II Unit owners' plans to
repressure the gas reservoir by reinjecting gas produced
from the unit and from other sources. The reinjection plan
called for a 14-year period of recycling and six to seven
years of "blowdown" (production of the injected gas).

28 The parties believed that reinjection would add to the oil

and gas reserves ultimately recoverable from the
reservoir. MDU urged the unit owners to buy natural gas
for recycling rather than nitrogen, even though natural
gas cost more, because the nitrogen would have
presented a processing problem upon extraction. After
balancing the costs and benefits of purchasing nitrogen,
 the unit decided to purchase outside gas for injection.

29 On September 1, 1983, the Powell II Unit and the adjoining

Spearhead Ranch Unit were terminated with the approval
of the Bureau of Land Management. The lands from the
Powell II and Spearhead Ranch Units were combined with
other lands from the surrounding area to form the Powell
Pressure Maintenance Unit (PPMU).

30 At the same time, the PPMU owners started a

repressurization program for secondary recovery of oil
and natural gas liquids from the unit. Natural gas
produced from the unit was processed to remove the
liquid hydrocarbons and then injected or "recycled" back
into the unit to maintain the reservoir pressure. As
planned, the unit owners purchased makeup gas from
outside the unit, which was injected into the reservoir to
assist in maintaining the desired pressure level. Over 17.5
billion cubic feet of makeup gas was injected into the unit
between September 1, 1983, and December 1, 1993.
Moncrief and the other PPMU owners did not pay
severance or production taxes or royalties on the makeup
gas withdrawn from the unit.

31 In 1993, the PPMU owners elected to discontinue

repressurization and begin blowdown of the unit. During
blowdown, the operator stops injecting gas and allows the
pressure to decline as gas is withdrawn from the unit. The
operator of the Powell II Unit informed WBIPC of its plans
for blowdown of the reservoir as early as 1991, but the
pipeline did not assert that it was not obligated to take
the gas injected from outside the unit until it answered in
this lawsuit. WBIPC believed that the Powell II contract
remained in effect and feared litigation if purchases
ceased.

32 Beginning in 1993, Moncrief tendered blowdown gas of six

million cubic feet per day to WBIPC. WBIPC offered to
 cancel the contract based on the representation that the
pipeline's customers (including its parent) had
discontinued purchases under Federal Energy Regulatory
Commission (FERC) Order No. 636. WBIPC also claimed
that the pipeline's take obligation was to take only
Moncrief's working-interest share of twelve million cubic
feet per day. Moncrief disputed all these claims and
demanded adequate assurances, which WBIPC refused to
provide. WBIPC has refused to purchase gas from
Moncrief since November 1, 1993.

DISCUSSION

I. Price

33 A. Did the District Court Properly Address the Merits of

the Favored Nations Clause Claim?

34 This action was commenced on November 9, 1993.

Following extensive pretrial proceedings, the case was
tried in a bench trial from January 10-19, 1996. In its
opinion, issued on August 16, 1996, the district court
ruled sua sponte that Moncrief was entitled to damages
under p 7.6 of the contract, the favored nations clause,
despite the fact that Moncrief did not present this theory
in his Second Amended Complaint. The court reopened
the case to receive "evidence that the parties may wish
to present on this issue," because the record did not
contain any evidence which would permit the calculation
of damages (if any) under the clause. 3 J.A. 1196. In these
rulings the court did not invoke Fed.R.Civ.P. 15(b) nor did
it conduct any analysis justifying the application of that
rule. Rather, it explained the absence of evidence, and
the basis for reopening the case, on the ground
(unsupported by any reference to the record) that "the
parties thought that the favored nations clause evidence
had been excluded, inadvertently, by the Court in its
summary judgment opinion." 3 J.A. 1196.
35 After allowing additional discovery, the court
subsequently held further trial proceedings on April 27,
1997. In an opinion issued on June 26, 1997, it denied the
defendants' motion for reconsideration, and concluded
that the plaintiffs' complaint should be amended to
conform to the evidence pursuant to Fed.R.Civ.P. 15(b), so
as to include a claim under the favored nations clause of
the contract. The court determined that the issue was
tried by implied consent of the parties, and that the
defendants were not prejudiced since they had been given
ample post-trial discovery and preparation time, and there
was an evidentiary hearing on the merits.

36 The district court then ruled that a contract between

Forest Oil Corporation and KN Energy, Inc. (the "Forest
Contract") for the purchase of gas at $4.38 per MMBtu
qualified under p 7.6, and established the Forest Contract
price as the Moncrief contract price for the period from
August 13, 1993, through September 30, 1993, when the
Forest Contract was assigned to a subsidiary. It also ruled
that a contract between Moncrief and ANR Pipeline
Company, originating in 1980 and amended in 1989, for
the purchase of gas at $3.50 per MMBtu, qualified under p
7.6 and established the Moncrief contract price for the
period from October 1, 1993, to July 7, 1996.

37 On appeal, the defendants first argue that this issue is

substantive, not procedural, and is governed by Wyoming
law relating to the waiver, abandonment and release of
claims. We disagree. The record relates most directly to
the procedural posture of the case. Therefore we analyze
this issue under the Federal Rules.

38 Rule 15(b) provides in relevant part as follows:

39 (b) Amendments to Conform to the Evidence.

When issues not raised by the pleadings are tried by express

40
or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause
them to conform to the evidence and to raise these issues
may be made upon motion of any party at any time, even after
judgment; but failure so to amend does not affect the result of
the trial of these issues.

41 We review a district court's decision to amend the

pleadings to conform to the evidence under the abuse of
discretion standard. See Rios v. Bigler, 67 F.3d 1543, 1551
(10th Cir.1995). Here, whether the district court abused
its discretion by sua sponte introducing the favored
nations clause claim and allowing further trial
proceedings is best evaluated in the context of how the
plaintiffs themselves proceeded as to that claim.

42 In its 1995 summary judgment opinion the District Court

specifically noted the changes in the plaintiffs' claims,
including the abandonment of any claim under the favored
nations clause of the contract:

43 Plaintiff's theories of recovery have been evolving.

Moncrief's three different complaints in this action have
reflected three different theories of recovery. Moncrief's
initial complaint argued that the sellers owed a higher
price based on the Section 7.6 "favored nation" clause of
the contract. In this initial complaint, Moncrief also
asserted that the natural gas sold under the contract was
deregulated on January 1, 1985, and that, based on the
terms of the contract, the applicable price was the last
regulated price of $3.845 per MMBtu plus tax
reimbursement.

44 In the plaintiff's First Amended Complaint he abandoned

the application of the favored nations clause and
concentrated on the last regulated price and his claim
that the contract did not allow the contract price to
 decrease. In the First Amended Complaint, Tex Moncrief
argued that deregulation of the contract price had
occurred on January 1, 1985.

45 Finally, the plaintiff's Second Amended Complaint,

currently before the Court, proposes that the gas under
the contract remained regulated after all. Moncrief now
argues that the governing price comes from the Natural
Gas Policy Act 105(b)(3) which sets a ceiling price for
"old gas." According to this contention, the applicable
price under the contract is set by 18 C.F.R. 271.101.

46 Moncrief v. Williston Basin Interstate Pipeline Co., 880

F.Supp. 1495, 1504 (D.Wyo.1995) (emphasis added). This
is an accurate description of the evolution of the
plaintiffs' claims, culminating with the Second Amended
Complaint which then governed the proceedings. That
complaint raises only the issue of, and seeks relief based
on, regulated prices.

47 The plaintiffs' abandonment of a favored nations claim

followed the defendants' discovery requests relating to
that claim after the initial complaint was filed. Plaintiffs'
counsel responded to those requests by telling
defendants' counsel that plaintiffs would drop their claim
on that clause. Plaintiffs' counsel then responded in
writing to the discovery requests, stating that "Moncrief
has chosen not to pursue his claim under the contract's
'favored nations' clause." 11 J.A. 4981-83. The plaintiffs
then filed a motion for leave to amend their complaint,
stating that "Moncrief has also amended his complaint to
omit his claim under the contract's 'favored nations'
clause...." 1 J.A. 37. The motion to amend was granted by
the magistrate judge, and the favored nations clause
claim was absent from the first amended complaint as
well as the second amended complaint.

48 The absence of any favored nations clause claim by the

 plaintiffs is consistent in the plaintiffs' pretrial
memoranda, trial brief, and pretrial proposed findings of
fact and conclusions of law, all of which pursued
regulated price claims. The court's pretrial conference
order does not include any claim under the favored
nations clause, and explicitly provided that the order
controls and would not be amended except with consent
of the parties unless "by order of the court to prevent
manifest injustice." 3 J.A. 1014. In his lengthy opening
statement, plaintiffs' counsel reconfirmed abandonment,
stating that Moncrief initially made a claim under the
favored nations clause "which we later withdr[ew]. We
later abandoned that claim." 5 J.A.2049.

49 It is undisputed that plaintiffs' counsel made no motion

during trial, or at any time after trial, to amend its
pleadings to reassert a claim under the favored nations
clause of the contract. And, there was certainly no
explicit consent by defense counsel that the issue could
be reintroduced. As for the court's reference to an alleged
view by the parties that there was an inadvertency or
some confusion in the ruling on summary judgment, no
motion for reconsideration or clarification on the subject
was filed by the plaintiffs after the ruling, at any time
prior to trial (including contentions in pretrial orders), or
after trial. In short, the court's ground for reopening the
trial--inadvertency or confusion regarding the district
court's summary judgment ruling--has never been
reasserted again, including in the arguments on appeal.

50 The district court held that the issue was tried by implied
consent because defense counsel referred to the favored
nations clause when examining some witnesses about the
contract, and introduced exhibits D-61, D-63, D-64, D-119,
D-119-A, and D-121 which pertained to that clause. On
appeal, plaintiffs' counsel identifies some of those and
other exhibits as well, including D-108, D-113, and D-118,
along with sixteen references to portions of the trial
 testimony. In sum, out of literally hundreds of exhibits, the
district court and the plaintiffs have identified about
twelve which even mentioned favored nations issues, and
a handful of instances where that subject came up during
the examination of witnesses.

51 We have reviewed all of these references to the favored

nations clause. Whether viewed individually or
collectively, they do not represent anything that can fairly
be characterized as the introduction and trial of a favored
nations price claim. See Hardin v. Manitowoc-Forsythe
Corp., 691 F.2d 449, 457 (10th Cir.1982) (stating that "
[i]mplied consent is found where the parties recognized
that the issue entered the case at trial and acquiesced in
the introduction of evidence on that issue without
objection").

52 Some of these references are innocuous.4 Some are

inextricably intertwined with historical facts explaining
the course of the parties' dealings, views, and conduct,
both in-house and otherwise, and are entirely appropriate
as part of describing the whole picture.5 An omitted claim
does not require redaction of history.

53 The balance of the material in question was obviously

employed to discredit the plaintiffs' arguments that the
Moncriefs and their employees and experts always
regarded the contract price to be the last regulated price,
that regulated prices continued after 1984, and that
prices were never supposed to decrease.6 Implied
consent cannot be based upon the introduction of
evidence that is relevant to an issue already in the case
when there is no indication that the party presenting the
evidence intended to raise a new issue. See
Southwestern Stationery and Bank Supply, Inc. v. Harris
Corp., 624 F.2d 168, 171 (10th Cir.1980); Ellis v. Arkansas
Louisiana Gas Co., 609 F.2d 436, 440 (10th Cir.1979); see
also 6A Charles Alan Wright, Arthur R. Miller, and Mary
 Kay Kane, Federal Practice and Procedure 1493, at 32-
35 (2d ed.1990). Indeed, "[w]hen evidence claimed to
show trial of an issue by consent pursuant to Rule 15(b) is
relevant to a separate issue already in the case, it would
be unjust to the opposing party to consider a new theory
of recovery after trial is complete." Cook v. City of Price,
Carbon County, Utah, 566 F.2d 699, 702 (10th Cir.1977).

54 Admittedly, the defendants' attempts to show that the

prices they paid through 1984 reflected favored nations
considerations rather than regulation as such, and that
the plaintiffs ignored fluctuations in favored nations
prices through 1992, are somewhat problematic. See Exs.
D-61, D-63, D-64, D-119, D-119-A; see also 5 J.A.2096-2100;
6 J.A. 2700-01. Both arguments necessarily subsume the
unspoken but inevitable premise that favored nations
prices were and continued to be relevant. But, even an
acknowledgment that p 7.6 continued to be a viable part
of the contract (apparently a given) does not resolve
anything. It simply provides, arguendo, the basis for a
claim to be proved, not proof of the claim.

55 If the claim asserted to have been tried by consent is that

the applicable contract price from August 1993 to July 7,
1996, was set by a contract or contracts qualifying under
p 7.6, it faces an insurmountable obstacle. There is no
evidence proving the claim. This deficiency is highlighted
by the fact that the only competent evidence available to
prove up the claim, and which was used by the court--
qualifying comparison contracts and testimony and
evidence concerning the qualifying contracts--was not
introduced until the second trial, after the first trial was
completed. Thus, even assuming hypothetically that the
plaintiffs' first complaint was reinstated at trial, the
favored nations claim would have failed for lack of proof
of a qualifying contract and damages, each a sine qua non
of the claim. After both parties rested, at the trial held in
January 1996, the district court would not have been able
 to fashion a judgment for the plaintiffs under p 7.6. And,
sua sponte reopening the case for a further trial to
breathe life into a failed issue is not the purpose of or
sanctioned by Fed.R.Civ.P. 15. That rule allows the
pleadings to be amended to conform to the evidence
already entertained by the court, not to evidence
presented at a further trial.7

For these reasons we conclude that the district court

56
abused its discretion by holding that a claim under the
favored nations clause, p 7.6, was tried by implied
consent, and by sua sponte reopening the case for a
further trial on that subject, resulting in an award of
damages.

57 B. Did Regulated NGPA Prices Continue to Operate as the

Applicable Contract Price After Deregulation?

58 Throughout this case, the plaintiffs' central argument as

to rates has been that the contract price continued to be
the last and highest NGPA regulated rate cognizable
under p 7.4 of the contract. They assert that the district
court erred in its rulings that the contract is
unambiguous, that intrastate natural gas prices were
deregulated on January 1, 1985, and that NGPA rates did
not survive deregulation as the continuing price under the
contract. The district court's holding that the contract is
unambiguous foreclosed consideration of parol evidence
of the parties' intent as to the meaning of the contract
provisions in question.8 Nevertheless, although the
district court stated that it did not consider such
evidence in arriving at its decision, the court did receive
parol evidence allegedly relevant to the parties' intent as
to the meaning of the contract, as well as the parties'
course of conduct, and that evidence is contained in the
appellate record.

59 We review de novo questions of contract ambiguity and

 legal interpretation, the meaning and effect of the NGPA,
and Wyoming law. See Salve Regina College v. Russell,
499 U.S. 225, 239, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991)
(stating that "courts of appeals review the state-law
determinations of district courts de novo "); United States
v. Fillman, 162 F.3d 1055, 1056 (10th Cir.1998) (stating
that "[w]e review de novo the district court's
interpretation of a federal statute"); City of Wichita v.
Southwestern Bell Tel. Co., 24 F.3d 1282, 1287 (10th
Cir.1994) (stating that "[t]he determination of the
ambiguity of a contract is a question of law reviewed de
novo"). We review the district court's findings of fact
under the clearly erroneous standard. See Fed.R.Civ.P.
52(a); Candelaria v. EG & G Energy Measurements, Inc.,
33 F.3d 1259, 1261 (10th Cir.1994).

60 There is a highly contested issue in this case as to

whether the government's regulation of intrastate gas
prices under the NGPA was discontinued by Congress as
of January 1, 1985, or as of January 1, 1993. But there is
no claim that any NGPA regulation of prices cognizable
under the contract existed after 1992.9 Since the only
period at issue in this appeal is August 1993 through July
6, 1996, the contract's expiration date, it is largely
immaterial whether deregulation was effective on
January 1, 1985, or January 1, 1993, unless the contract
requires that regulated prices must continue as the
contract price after deregulation. If, pursuant to this
contract, regulated rates survived deregulation, then the
date of deregulation becomes important because the
regulated 102 rate at the end of 1984 was $3.845 per
MMBtu and the 105(b)(3) ceiling rate at the end of 1992
was $6.371 per MMBtu. If relevant regulated rates did not
survive deregulation under this contract, then we need
not address whether deregulation ceased at the end of
1984 or 1992. Accordingly, the threshold question is
whether regulated rates survived deregulation as the
contract price for natural gas under the terms of the
 parties' contract. Our inquiry must, of course, begin with
the terms of the contract.

1.

61 As indicated above, the district court found no ambiguity

in the pricing provisions of the contract and held that
regulated prices did not survive deregulation. It stated:

62
Plaintiffs have urged that the contract did not provide for a
fall in the contract price following deregulation, and, as a
result, that the contract price remains at the highest
regulated price. However, even if a gas contract does not
explicitly provide for a lowering of a contract price, it is
implicit in a price redetermination clause like that found in
Section 7.5. See, Prenalta Corp. v. Colorado Interstate Gas,
No. C89-1010-B (Brimmer, C.J.), rev'd on other grounds, 944
F.2d 677 (10th Cir.1991); Questar Pipeline Co. v. Grynburg, et
al., No. 92-CV-265-J (Johnson, C.J.) and PG & E Resources Co.
v. Questar Pipeline Co., No. 93-CV-063-J (Johnson, C.J.).
Moreover, courts have also held that in gas purchase
contracts, the escalated base contract price governs when
deregulation occurs and the parties have failed to
redetermine a new contract price. E.g., Colorado Interstate
Gas v. Martin Exploration Management Corp., No. 85-CV-0399
(Dist. Ct. El Paso County, Colo. Dec. 15, 1988).

63 Moncrief, 880 F.Supp. at 1520.

64 Alternately arguing for interpretations in their favor based

on lack of ambiguity, Br. for the Appellants at 25-30, or
ambiguity, Appellants' Reply Br. at 29, the plaintiffs offer
a multitude of reasons why the district court erred in
holding that regulated prices expired for contract
purposes when they expired by statute. Their central
thesis is that prices under this contract operated on an
upward ratchet principle--they could only go up, never
down. This position, they argue, is supported by the facts
that the contract was made in a sellers' market and "[o]ne
 principal purpose of the contract was to assure Moncrief
of the highest price he could collect for intrastate gas
during the life of the contract." D. Ct. Findings of Fact and
Conclusions of Law, 3 J.A. 1186. They point to the
unambiguous language of the escalator clauses, which
refer only to price increases and upward adjustments to
reflect "such higher prices" or "such higher rate." 8 J.A.
3538, 3540 (pp 7.4, 7.6). There are no provisions for
lowering prices, and no market-out clause. In addition,
plaintiffs assert that the contract was all the work of the
defendants and should therefore be construed against
them.

65 The upshot of these arguments is that regulated rates

purportedly served merely as a reference point or
benchmark. Once that benchmark was established it took
on (or always had) a life of its own as the contract price,
unaffected by any later deregulation of the rate. As
support for this benchmark principle, plaintiffs cite Amoco
Prod. Co. v. Stauffer Chem. Co., 612 P.2d 463 (Wyo.1980),
and this court's opinion in Northwest Cent. Pipeline Corp.
v. JER Partnership, 943 F.2d 1219 (10th Cir.1991). Other
than these two cases, the plaintiffs cite no authority
purporting to directly support their position. To the
contrary, they recognize that the district court cases
cited by the court here are directly against them and they
ask us to "overrule" those cases. Appellants' Reply Br. at
47. They also attempt to distinguish the district court
cases on the ground that they were interpreting regulated
interstate contracts "which had to accept federal pricing
law." Id.

66 The plaintiffs' reliance on JER underscores the point that

contract cases turn on the particular facts of each case.10
Except for the first month, the contract involved in the
JER case had, essentially, only two ways to determine
price: a regulated rate or, if regulation ceased, then, at
the seller's option, a redetermined price under a specified
 formula. The district court in JER held that the contract
was ambiguous as to price upon deregulation, because if
regulation ceased, and the seller did not request a
redetermination, there was no provision for a price. The
court therefore resorted to extrinsic evidence to
determine the intention of the parties. We upheld that
decision, reasoning--on our way to deciding the case on
extrinsic evidence grounds--that ambiguity exists where
two rational but mutually exclusive choices are available.
In this context we stated that

67 perfectly reasonable interpretation of this language (which

[a]
the district court ultimately adopted) is that nothing happens
to the contract price upon deregulation unless the seller
requests redetermination. Otherwise the seller's
redetermination right would be rendered meaningless.

68 JER Partnership, 943 F.2d at 1227.

69 Unlike the contract in JER, the contract in this case does

not present an unavoidable conundrum in the event of
deregulation and the seller's lack of request for a price
redetermination. Both the base price provisions of pp 7.1
and 7.2 and the favored nations pricing provision of p 7.6
continue to operate independently of deregulation and the
operation of p 7.4. And the contract does not state that
the price must always stay at the highest regulated rate
or other benchmark, nor does it say that regulated rates
survive deregulation. These are merely argumentative
inferences the sellers would have us draw.

70 On the other hand, the contract does not state that upon
deregulation prices must revert to those set under pp 7.1,
7.2 or 7.6 if the seller fails to request price
redetermination. So there is some basis for the plaintiffs'
interpretation.

71 Nevertheless, the rationales here are not equally

 plausible, as they were in JER where the provisions
created a virtual impasse. Under the favored nations
clause here, the price would adjust favorably to the
highest qualifying prices (applying the plaintiffs' own
definition of "Seller" as any seller), thus satisfying the
Moncriefs' desire to get the highest applicable price being
paid in the described geographic area. And, if prices fell
(plaintiffs assert that in 1975-76 prices were 67cents per
Mcf for interstate gas, and slightly above $1.00 per Mcf for
intrastate free market gas, Br. for Appellants at 6), the
escalated base price would protect them.

72 Accordingly, fully taking into account the context in

which this contract was negotiated, we agree with the
district court that the contract can be interpreted within
its four corners without ambiguity, and that regulated
prices ceased to apply upon deregulation. However,
deciding that the contract is ambiguous would not change
the outcome, as we next discuss.

2.

73 The plaintiffs alternatively argue that the contract is

ambiguous and that the district court erred in failing to
consider extrinsic evidence, inferring that we should
remand for a new trial on the question of regulated
pricing under the contract. Here too, they cite JER,
asserting that the case, in addition to declaring as a
matter of law that regulated prices survive deregulation,
also stands for the proposition that contractual ambiguity
requires resort to extrinsic evidence, which they assert to
be in their favor.

74 The district court in JER, unlike the district court in this

case, declared the contract to be ambiguous. It therefore
admitted and considered extrinsic evidence on the
meaning of the contract according to the parties. As to
that evidence we stated:
75 The district court found that, in the absence of a seller
request for redetermination, the parties intended the last
regulated price to be the contract price upon
deregulation. Overwhelming evidence supported this
conclusion. Indeed, Williams's witnesses uniformly agreed
that this was the parties' intention. We cannot say that
this finding was clearly erroneous.

....
76

77
[T]he parol evidence was crystal clear: the parties intended
the last regulated price to be the deregulated price unless
the seller requested price redetermination.

78 JER Partnership, 943 F.2d at 1228-29 (citation and

footnote omitted) (emphasis added).

79 That is not the situation in this case. The district court

admitted extensive extrinsic evidence regarding contract
negotiations and subsequent communications and
conduct of the parties relating to the contract. In fact, the
plaintiffs do not assert that they were prevented from
introducing any extrinsic evidence, or that some specific
relevant evidence exists and was proffered, but was
foreclosed by a ruling of the court. Thus, we have the
extrinsic facts before us. From our examination it is
apparent that, unlike JER, the evidence is far from
overwhelming or crystal clear in favor of the plaintiffs'
position that the parties intended regulated rates to
survive deregulation.

80 Indeed, plaintiffs point us to nothing in the record which

directly addresses the parties' intentions regarding the
effect of deregulation on contract prices set by reference
to the area rate clause. One internal communication in
1976 from Woods to Moncrief stated that MDU was
offering an attractive base price and a good opportunity
for price increases in the future. 8 J.A. 3516-18. Another,
commenting on the draft contract, stated that "there are
 numerous price protection clauses that will permit us to
be on a par with the highest price paid in the Powder
River Basin by any bona fide purchaser. At the present
time, the $1.00 per MMBtu price is the highest in
Wyoming." 8 J.A. 3525.

81 Moreover, Claud Pickard, MDU's gas-supply manager,

testified at his deposition as follows:

82 Q. [Pl. Exh. 8] says there are numerous price protection

clauses that will permit us to be par with the highest
price paid in the Powder River Basin by any bona fide
purchaser. Would you agree that that was an accurate
statement of the contract?

83 A. I would think so, uh-huh.

....
84

85 Q. Was that the intent of the parties when they entered

into the contract back in '76?

86 A. Well, I don't think it was the intent of MDU to be the

highest priced, but when you put a favored nations clause
in the contract, that's the way it works.

87 5 J.A. 2397-98 (portions of Pickard's deposition introduced

at trial) (emphasis added). Pickard also testified, at trial,
that the main purpose of intrastate contracts was to
obtain higher prices under favored nations clauses, and
that higher prices under the area rate clause or the
favored nations clause would supersede the base price. 5
J.A. 2373-74, 2396.

88 Apparently this testimony underlies the district court's

finding of fact that "Moncrief and Woods believed that the
price could not decrease from the highest rate achieved
at any time during the contract." 3 J.A. 1175. But, as the
 Pickard testimony quoted above indicates, it was not the
intent of MDU to be the highest priced. Pickard then went
on to state, nevertheless, that the favored nations clause
works that way.

89 None of this evidence, or any other, directly addresses

what the parties intended to happen to regulated prices
upon deregulation. Such evidence as there is refers
consistently to prices paid to bona fide purchasers, a
term used in the favored nations clause. This supports the
defendants', not the plaintiffs', view.

90 Neither Tex Moncrief nor Claud Pickard, the only

witnesses at trial involved in negotiating the contract,
had any recollection of the parties' intent or discussions
regarding the operation of the pricing clauses following
deregulation. 5 J.A. 2260-62, 2267-70, 2298-2306, 2409-10.
Moncrief did not testify that the price set under the area
rate clause could not decrease after deregulation. 5 J.A.
2396. Thus, to reiterate the point, the evidence regarding
the parties' intent at the time of drafting, unlike the
evidence in JER, is hardly overwhelming or crystal clear
regarding prices on deregulation.

91 The parties' course of conduct, however, cuts directly

against plaintiffs' argument. The defendants paid amounts
equal to the highest applicable regulated rates until the
end of 1984 when they considered such prices to have
been deregulated by Congress. At the time the regulated
price was $3.845 per MMBtu. The defendants then notified
the Moncriefs that the price would drop to $2.25. The
Moncriefs refused to sign any contract amendment to that
effect, but stated they would not sue, and they accepted,
without protest, payments based on the $2.25 rate in
1985 and 1986. After a similar notification, the defendants
dropped the price to $1.75 per MMBtu, which the
Moncriefs accepted, without protest, from 1987 to 1993.
92 Not once during this time did the Moncriefs claim that the
higher price paid in 1984 was required under the contract
to continue. Nor did Woods or the other working interest
owners who had contracts identical to the Moncrief
contract claim that 1984 regulated prices must continue.
See 6 J.A. 2966.

93 In sum, as the district court found, the Moncriefs

knowingly received prices lower than the 1984 regulated
price for more than eight-and-a-half years, and collected
approximately $1,244,000 at those rates,11 without once
voicing the highest price/benchmark interpretation of the
contract they now urge. Their explanation is that Moncrief
was simply waiving contract rights month by month,
Appellants' Reply Br. at 41, 49, or that the defendants
"laid low" knowing, apparently, that Moncrief was making
a mistake, id. at 48. These arguments do not square with
the fact that the Moncriefs were and are experienced
professionals in the oil and gas business.12 When parties
on both sides of a contract are knowledgeable,
experienced professionals, their course of dealing under
the contract is more likely to show their intent as to the
operation of the contract than to suggest mistake or
ignorance. That is especially true here where the
plaintiffs do not seriously advance the latter position,
there is no evidence to support it, and the district court
made express findings to the contrary. Thus, eight and
one-half years of payments, knowingly received,
essentially defeats the plaintiffs' argument.

94 It is true that the plaintiffs do point to some contrary

evidence in the way of defendants' filings with the FERC
in 1987, in which higher applicable rates are mentioned. 9
J.A. 3851, 3863. Even crediting this evidence, however, it
is impossible to conclude that the district court erred by
rejecting the plaintiffs' argument that the contract price
could never decrease. Even if we assume, arguendo, that
the contract was ambiguous on this point, the extrinsic
 evidence contained in the record, especially the parties
course of performance over eight-and-one-half years, is
too much against the plaintiffs to support a remand to the
district court for fact findings based on parol evidence.

3.

95 For the reasons stated above, we hold that, however

viewed, the district court did not err in its conclusion that
regulated rates did not continue to set prices under this
contract after those rates were terminated by Congress.
Accordingly, it is unnecessary to address whether
deregulation, as it pertains to this contract, occurred on
January 1, 1985, or on January 1, 1993. The only question
we must address here concerns the proper price to be
paid for the contract gas from August 1993 to July 6,
1996.

96 C. What Price Applies?

97 Our disposition of the issues above leads us back to the

district court's conclusion at the end of its summary
judgment opinion--that the contract price after August
1993 should be set by reference to a fair value price.
Paragraph 7.4 of the contract does not apply. Paragraph
7.6 was expressly abandoned as a claim. Paragraphs 7.1
and 7.2 have been set aside by the parties' course of
conduct just as surely as the plaintiffs' argument
regarding the survival of regulated rates was set aside by
the same course of conduct. Thus, despite the district
court's finding that the plaintiffs' letters in 1993 did not
amount to a request for price redetermination under p
7.5,13 the posture of the case places the parties
constructively in that position, or simply at "a reasonable
price" according to the open price provision of the
Uniform Commercial Code. See Wyo. Stat. Ann. 34.1-2-
305; see also Koch Hydrocarbon v. MDU Resources Group,
Inc., 988 F.2d 1529, 1535 (8th Cir.1993) (stating that if the
 contract was ambiguous as to the parties' intent
regarding price after deregulation, the contract price after
deregulation should be set by applying 2-305 of the
Uniform Commercial Code).

98 In the district court's summary judgment opinion, it

reserved the question of damages for trial. At trial both
parties presented alternative theories of damages that
included expert testimony on fair value price and market
price.14 We therefore vacate the damage award, and
remand the case to the district court to determine
damages based on the testimony presented at the first
trial.15 It goes almost without saying that any uncertainty
in ascertaining exact amounts caused by the defendants'
repudiation must be resolved against them.

II. Quantity

99 We now turn to the issues surrounding the quantity of

natural gas defendants were obligated to purchase under
the contract. The quantity terms of the parties' contract
state that "Seller agrees to sell and deliver to Buyer, and
Buyer agrees to purchase, receive and pay for the daily
quantity of gas which is physically available to Buyer at
the delivery point on each day of the term hereof," up to a
maximum of 12 million cubic feet per day. 8 J.A. 3536 (pp
3.1, 3.2). The district court held, based on the language of
these provisions, that defendants were obligated to
purchase as much gas as plaintiffs made available at the
delivery point, up to the stated maximum of twelve million
cubic feet per day. Defendants assert that the district
court's holding erroneously obligates them to purchase
two varieties of gas from lands not dedicated to the
contract. First, defendants argue that the district court's
holding obligates them to purchase gas attributable to
other areas of the PPMU, not originally part of the Powell
II Unit or otherwise dedicated to the contract. Second,
defendants contend that the district court's holding
 erroneously obligates them to purchase natural gas
produced on lands outside the entire PPMU and not
dedicated to the contract, purchased by plaintiffs, and
injected into the PPMU reservoir for conservation
purposes. We will address each of these assertions in
turn. This portion of the district court's holding was
decided as a matter of law, and therefore our review here
is de novo.

100A. Are Defendants Obligated to Purchase Only Gas

Produced From Lands Dedicated to the Contract?

101There are generally two types of natural gas purchase

contracts. The first is known as a warranty contract,
under which the producer warrants to the purchaser that
it will provide a certain amount of natural gas at the times
and places specified under the contract. A warranty
contract does not specify where the gas is to come from;
it simply obligates the producer to come up with the
specified amount of gas from any source and deliver it to
the purchaser. See 8 Howard R. Williams et al., Oil and
Gas Law 1162 (1997) (defining "warranty contract" as "[a]
contract for the sale of gas wherein the producer agrees
to sell a specific amount of gas and the gas delivered in
satisfaction of this obligation may come from fields or
sources outside the designated fields"); see also Florida
Power & Light v. FERC, 598 F.2d 370, 375 (5th Cir.1979)
(describing a warranty contract). The second is known as
a dedication contract, wherein the producer "contracts to
furnish the purchaser all the gas produced from specified
reserves, thus 'dedicating' those reserves to the
customer." 8 Howard R. Williams et al., Oil and Gas Law
253 (1997); see also Louisiana Land & Exploration Co. v.
Texaco, Inc., 478 So.2d 926, 927 (La.Ct.App.1985)
(distinguishing a warranty contract from a dedication
contract), rev'd on other grounds, 491 So.2d 363
(La.1986). By its own unequivocal terms, the parties'
contract was a dedication contract. The contract states
 that it covers certain lands only; these lands are
specifically enumerated in Exhibit B to the contract.
Paragraph 1.1 of the contract states that "Seller hereby
commits to the performance of its obligations under this
Agreement, all of Seller's interest in gas produced from
wells completed on the lands as previously set forth
herein, and dedicated to this contract...." 8 J.A. 3535 (p
1.1) (emphasis added).

102This conclusion is supported by an examination of the

parties' course of dealing. See Wyo. Stat. Ann. 34.1-2-
202, comment 1(c) (Michie 1997) (allowing courts to
examine the parties' course of dealing even where the
contract is unambiguous). When the contract was first
signed in 1976, the lands dedicated to the contract
included only plaintiffs' interest in the Powell II Unit, as
well as two other small parcels. On two occasions, in
1977 and 1978, the parties amended the contract to
include other parcels. See R. Vol. 12, Supp.App., Tab 303.
In 1979, the parties again amended the contract, this time
to remove lands from the contract's purview. Id. at Tab
304. If the contract were something other than a
dedication contract, such amendments would have been
wholly unnecessary. Under warranty contracts, it is
irrelevant where the gas comes from, as long as the
producer delivers it to the specified place on time.
Dedication contracts, however, are intended to cover only
gas produced from the specified parcels. Plaintiffs took
great care in the early years of the contract to amend the
contract to include additional production wells. This
course of performance indicates that the parties
understood the contract to be a dedication contract
which applied only to gas produced from the lands
dedicated thereunder.16

103When the PPMU was created in 1983, it consisted of the

Powell II Unit and several other parcels previously
dedicated to the contract, as well as some lands not
 previously dedicated to the contract. R. Vol. 12,
Supp.App., Tab 299. Plaintiffs argue that the
establishment of the PPMU was an "expansion" of the
Powell II Unit, as provided for in Exhibit B of the contract.
Appellants' Reply Br. at 4-6; 8 J.A. 3556 (stating that the
contract covers plaintiffs' interest in the Powell II Unit
"as said Unit is approved by the United States Geological
Survey and as such Unit is expanded or contracted from
time-to-time by the U.S.G.S."). We are not persuaded. The
creation of the PPMU was a unitization of several parcels,
not an expansion of the Powell II Unit. By creating the
PPMU, the Bureau of Land Management (BLM) terminated
both the Powell II Unit and the adjacent Spearhead Ranch
Unit, owned by producers other than plaintiffs, and
combined them into one unit for conservation purposes.
Essentially, the BLM unitized all units in the same
reservoir, including the former Powell II Unit, the former
Spearhead Ranch Unit, and others, into one new unit,
called the PPMU. This was not an expansion of the Powell
II Unit as encompassed by the language in Exhibit B. The
record demonstrates that even plaintiffs considered the
action a "[u]nitization" rather than an expansion. 8 J.A.
3741 (a letter from Woods to all working interest owners
in the Powell II Unit, and referring to the BLM action as
"unitization").

104Indeed, the unitization brought about by the creation of

the PPMU is covered by another provision of the contract.
In Article III(A) of the contract, plaintiffs retain certain
rights, including the right to "unitize or pool any of Seller's
lands committed hereunder with other properties of Seller
or others in the same field...." 8 J.A. 3546 (p 3.1(e))
(emphasis added). In that event, the "Agreement will
cover Seller's production attributed to the said lands in
the unit or units so formed." Id. (emphasis added). Thus,
under the unambiguous terms of the parties' contract, a
unitization such as that effected by the creation of the
PPMU does not incorporate the other lands within the unit
 into the contract's coverage. Rather, the contract
provides that in the event of unitization, the contract will
cover only that portion of Seller's production attributed to
the contract lands within the new unit.

105We conclude, therefore, that only the specific lands

enumerated in Exhibit B to the contract, and not the
entire PPMU, were dedicated to the contract. Under the
unambiguous terms of the parties' dedication contract,
most notably p 3.1(e) of Article III(A), plaintiffs were
obligated to sell, and defendants obligated to purchase,
only that portion of plaintiffs' natural gas production
attributable to the previously-dedicated contract lands. To
the extent the district court's holding is inconsistent with
this conclusion, it is reversed.

106B. Are Defendants Obligated to Purchase Injected Gas?

107Next, we must determine whether defendants are

obligated to purchase the 17.5 billion cubic feet of gas
purchased from sources outside the lands dedicated to
the contract, and subsequently injected into the PPMU
reservoir to maintain pressure. This issue has had a
complicated journey through the district court. Both
parties moved for summary judgment on the issue, with
plaintiffs arguing that the pipeline had to purchase the
non-native injected gas, and defendants asserting that
such gas was not covered by the contract. 1 J.A. 62-64,
109-11. In its summary judgment opinion, the district
court ruled in plaintiffs' favor on the issue, relying on p 3.1
of the parties' contract, and stated that "the Plaintiffs'
Motion for Summary Judgment on the issue of make-up
gas be, and the same hereby is, GRANTED and the
Defendants' Motion for Summary Judgment on the same
issue be, and the same hereby is, DENIED." Moncrief, 880
F.Supp. at 1523, 1524. However, during the ensuing bench
trial, the district court and both parties appeared to treat
the issue as one which had not yet been decided. The
 district court allowed both parties to argue essentially the
same positions that had already been decided at the
summary judgment stage, and to introduce both
documentary evidence and witness testimony on these
issues.17 In its posttrial opinion, the district court spent
only one sentence on injected gas issues, essentially
restating its summary judgment conclusions, and stating
that "the language [of the contract] is unconditional, and
requires WBIPC to purchase injected or makeup gas." 3
J.A. 1198.

108Thus, we are faced with an issue which was decided on

summary judgment as a matter of unambiguous
contractual interpretation, yet about which the district
court took all manner of extrinsic evidence at trial.

1.

109Our first task is to determine whether the district court

correctly concluded that the contract was clear and
unambiguous with respect to the non-native injected gas
issue. The district court, relying on p 3.1's "physically
available ... at the delivery point" language, held as
follows:

110
Defendant is required to purchase the minimum daily amount
available at the delivery point. There is no exception for
injected or make-up gas. The Count [sic] finds that this
language is unambiguous and that it requires the defendants
to purchase, subject to the contractual quantity limitations,
the minimum amount of gas offered at the delivery point,
regardless of whether the gas is make-up gas or not.

111Moncrief, 880 F.Supp. at 1523 (footnote omitted). The

district court reasoned that because there was no
provision excepting makeup gas from the contract, and
because the parties were experienced natural gas
professionals who could have expressly excepted injected
gas from the contract's purview had they so intended,
 non-native injected gas was covered by the parties'
contract.

112We see two problems in the district court's analysis of

this issue. First, the contract is silent on the entire issue
of non-native injected gas, and certainly does not specify
whether such gas is dedicated to the contract or not. The
only contractual provision that even mentions the
possibility of injected gas, p 3.1(b) of Article III(A),
demonstrates that the parties at least contemplated that
the Moncriefs might, at some point, be required to use
some of the gas produced on the dedicated lands for
reinjection purposes. However, this provision states only
that the plaintiffs would not be required to sell native gas
necessary for pressure maintenance to defendants.
Notably, while this provision explicitly addresses
reinjection of native gas, it is wholly silent regarding the
issue of non-native injected gas. The silence of p 3.1(b) on
the subject of outside makeup gas could be evidence that
the parties to the contract, contrary to the district court's
conclusion, did not necessarily contemplate the
possibility, at the time of drafting, that non-native gas
may be needed to maintain pressure in the reservoir.

113A contract's silence on a particular issue does not create

an ambiguity in every instance, but silence on a "matter
naturally within the scope of the contract" gives rise to
ambiguity. Cheyenne Mountain Sch. Dist. v. Thompson,
861 P.2d 711, 715 (Colo.1993). 18 Questions regarding
which gas is dedicated to the contract and regarding the
pipeline's obligation to purchase gas are issues naturally
within the scope of the contract, and we therefore
conclude that the contract is ambiguous on this issue.

114Second, the district court's analysis on the issue of

ambiguity is additionally flawed, because it overlooked
the fact, discussed above, that the parties' contract is a
dedication contract, which covers only gas attributable to
 lands expressly dedicated to the contract. 3 J.A. 1198
(statement of the district court, in its post-trial
conclusions of law, that "[t]he contract says nothing
about limiting WBIPC's take to a dedication of reserves").
Gas produced from lands not dedicated to the contract is
not covered by the contract. Contrary to the holding of the
district court, the defendants are not obligated to
purchase all gas physically available at the delivery point
unless the gas was produced from dedicated lands.

115Indeed, the district court's analysis could lead to absurd

results. If the parties' contract really did obligate the
pipeline to purchase all gas physically available at the
delivery point, regardless of origin, the contract would
become little more than an arbitrage contract, under
which plaintiffs, when the market price of gas fell, would
be able to purchase gas from outside sources, transport it
to the delivery point, and demand that defendants
purchase it at the applicable contract price. Construing
this dedication contract in its entirety, we find it unlikely
that the parties intended such a result, and we therefore
conclude that, in any event, the contract does not
unambiguously point to the district court's interpretation
of the contract's quantity provisions.

2.

116In most such cases, where we conclude that the district

court erred in deciding that a contract is unambiguous,
and we reverse a grant of summary judgment entered as a
matter of unambiguous contractual interpretation, we
must remand to the district court for findings regarding
the interpretation of the ambiguous contract. See
Republic Resources Corp. v. ISI Petroleum West Caddo
Drilling Program 1981, 836 F.2d 462, 466 (10th Cir.1987);
see also Moriarty v. Svec, 164 F.3d 323, 330-32 (7th
Cir.1998). We need not do so, however, where all the
extrinsic evidence is in, and where that evidence so
 clearly weighs in one direction that there is no genuine
issue of material fact left for the district court to decide.
See Teamsters Indus. Employees Welfare Fund v. Rolls-
Royce Motor Cars, Inc., 989 F.2d 132, 137 (3d Cir.1993)
(reversing a grant of summary judgment in favor of the
union based on a finding that the agreement was
unambiguous, holding that the contract was actually
ambiguous, but refusing to remand for findings because "
[a] rational fact-finder could not conclude otherwise" than
to enter summary judgment for the corporation, and
directing the district court to enter summary judgment for
the corporation); cf. Fry v. Airline Pilots Ass'n, Int'l, 88
F.3d 831, 843 (10th Cir.1996) (directing entry of summary
judgment because "it would be a pointless exercise to
remand the case for further consideration on the issue
since the outcome is clear").

Because of the unusual procedural posture of this issue--

117
an issue decided on summary judgment, yet about which
the parties introduced evidence and testimony at trial--we
have before us all of the arguments and evidence relevant
to this issue. The evidence, in addition to the contractual
provisions mentioned above, cited to us and to the district
court on this issue is as follows:

118a. Negotiation History. The only persons involved in the

negotiation of the parties' contract who testified at trial
were Tex Moncrief and Claud Pickard. Both witnesses
were asked about the injected gas issues. When asked
whether it was MDU's intent "to purchase anything other
than what you would have estimated as the native gas
under those reserves," Pickard stated, "[n]ot at that time,
no." 5 J.A. 2416. Tex Moncrief was asked about his
reasons for wanting to include p 3.1(b) of Article III(A),
and stated that plaintiffs anticipated quite early on that
they might have to begin a pressure maintenance program
in the Powell II area. 5 J.A. 2200-01. He was, however, not
asked anything about the pipeline's obligation to purchase
 non-native injected gas, and his testimony shed no light
on the issue.

119Notwithstanding the inconclusive nature of Tex Moncrief's

testimony on this point, and the clear testimony of
Pickard that the pipeline did not, at the time of drafting,
intend to purchase non-native gas, plaintiffs argue that
we should infer an intention on the part of the pipeline to
purchase all gas, including non-native injected gas, from
the following evidence: (1) the prevailing market
conditions at the time the contract was signed, and (2)
the fact that this was a "deliverability" contract under
which the pipeline agreed to purchase all gas delivered to
the delivery point. Appellants' Reply Br. at 4, 7. However,
we will not draw such an inference from general market
evidence when there is specific testimony, from Pickard,
that notwithstanding market conditions, MDU did not
intend to purchase anything other than native gas. And
plaintiffs' argument about the "deliverability" contract
overlooks the fact, discussed above, that this was a
dedication contract, and that the pipeline agreed to
purchase all gas plaintiff tendered at the delivery point,
up to a 12 million cubic feet per day ceiling, but only if
that gas was produced from lands dedicated to the
contract.

120When we examine the negotiation history as a whole,

then, the evidence regarding the parties' intentions at the
time of drafting weighs in favor of the pipeline.

121b. Actions Since Negotiation. The parties point us to at

least two basic post-negotiation events which they assert
shed light on this issue. We discuss each in turn. First, the
defendants direct us to two contracts plaintiffs signed
with Mountain Fuel Supply Company. Under the terms of
these contracts, plaintiffs contracted to purchase outside
natural gas for injection into the PPMU reservoir. Both of
these contracts had a significant provision granting
 Mountain Fuel an option, known as a "right of first
refusal," to buy back the injected gas at the
commencement of blowdown operations. 10 J.A. 4374,
4427 (stating that "Seller shall have first option to
purchase part or all of the available volumes"). As
discussed above, however, the parties' contract is a
dedication contract, under which plaintiffs were obligated
to sell, and defendants obligated to purchase, gas
produced from lands dedicated to the contract. If
plaintiffs had intended that the gas purchased elsewhere
and injected into the reservoir was to become dedicated
to the parties' contract, they would not, and indeed could
not, have granted Mountain Fuel a right of first refusal. All
gas covered by the contract is dedicated for sale to
defendants, and plaintiffs may not sell such gas to other
purchasers. Plaintiffs are obligated to sell dedicated gas
to defendants, and defendants are obligated to purchase
such gas. The only possible inference a rational fact-
finder can draw from plaintiffs' willingness to grant
Mountain Fuel a right of first refusal is that the parties
never intended the injected gas to become dedicated to
the contract.19

122The record also demonstrates that defendants shared this

understanding. The government requires interstate
pipeline companies, such as defendants, to annually
submit documents detailing the reserves of gas they
currently have under contract. The record reflects that at
no time did defendants' governmental filings contain any
reference to PPMU injected gas. 6 J.A. 2973-74. This
suggests that defendants claimed no contractual right or
obligation to purchase the injected gas.

123Second, plaintiffs point us to evidence in the record that

MDU "urged the [plaintiffs] to use natural gas" instead of
nitrogen for pressure maintenance purposes, and argue
that, therefore, the pipeline "may not now claim [that it]
does not have to buy the gas it urged the [plaintiffs] to
 inject." Appellants' Reply Br. at 7. However, the record
evidence plaintiffs point to in support of this estoppel-
based argument simply does not advance their cause. The
record reflects that the decision to use natural gas rather
than nitrogen was made by plaintiffs for the sole benefit
of plaintiffs. It was an economic decision entered into
after careful consideration of the costs and benefits of
nitrogen injection. It was the plaintiffs, not the
defendants, who would have been stuck with the costs of
nitrogen rejection upon blowdown, and the plaintiffs made
an independent economic decision to use natural gas. See
8 J.A. 3739 (internal pipeline memorandum stating that
plaintiffs told the pipeline that, if the plaintiffs decided to
use nitrogen, "Woods would install a nitrogen rejection
plant" and "would balance the cost of installing that plant
and the cost of the nitrogen against the natural gas cost
and make a decision"); see also 5 J.A. 2337-39 (testimony
of Dr. Holditch that plaintiffs obtained a "20 percent rate
of return" on the injection investment using natural gas).

124Plaintiffs' estoppel-based argument is also somewhat

illogical. Had plaintiffs elected to use nitrogen instead of
non-native natural gas for pressure maintenance
purposes, it would be untenable for them now to argue
that the contract somehow obligated the pipeline to
purchase the nitrogen upon blowdown. Whether nitrogen,
non-native gas, or some other substance, the plaintiffs
were merely using the substance as a tool to maximize
native oil and gas extraction. Plaintiffs' argument that the
pipeline is obligated to purchase plaintiffs' tools,
employed solely for plaintiffs' economic benefit, is simply
unavailing.

125When examined in its entirety, the evidence concerning

the parties' actions since the contract was signed weighs
heavily in favor of the defendants' interpretation of the
contract. Indeed, the evidence is so one-sided on this
point that we consider it a fruitless exercise to remand to
 the district court for the entry of findings on this issue.
There simply is not a genuine issue of material fact here
for the district court to decide. Starting with the premise
that the parties' contract is a dedication contract, and
taking into account all relevant extrinsic evidence, there
is no destination at which a rational fact-finder can arrive
other than at the conclusion that the contract does not
obligate defendants to purchase non-native injected gas.
This litigation has lasted six years already, and in the
interest of judicial economy, we direct the district court
to enter summary judgment for the pipeline on the
injected gas issue.3.

126We are then faced with the issue of determining plaintiffs'

damages, if any. It is undisputed that defendants are
obligated to purchase native gas extracted from lands
dedicated to the contract, even if that gas was
subsequently injected back into the reservoir from
whence it came. We hold above that defendants are not
obligated to purchase non-native gas, extracted from
lands not dedicated to the contract, and subsequently
injected into the PPMU reservoir. The problem we face is
that once injected into the reservoir, the two types of gas
become fungible, and it is impossible to tell the difference
between native and non-native gas.

127We are aware that it is common practice in the oil and

gas industry, at least for royalty and taxation purposes, to
treat the first gas extracted from the reservoir upon
blowdown as the non-native injected gas. For instance, in
this case, the PPMU owners agreed that no royalty
payments would be made on the first 17.5 billion cubic
feet of gas extracted from the reservoir upon blowdown,
R. Vol. 12, Supp.App., Tab 308 at 20, and that the
Wyoming Oil and Gas Conservation Commission exempted
the first 17.5 billion cubic feet from state taxation, 10 J.A.
4580.
128However, these are only administrative determinations
driven by convenience, and we need not give undue
deference to them. In the gas purchase context, as
opposed to the royalty or taxation contexts, we think
such administrative determinations have limited
applicability, especially where, as here, the contract term
has expired and all we must do is calculate damages.
Convenient administrative fictions do not alter the fact
that defendants are obligated to purchase all native gas
produced from lands dedicated to the contract. Were we
to apply the same methodology used by the Wyoming Oil
and Gas Conservation Commission, defendants would be
relieved of their obligation to purchase a portion of the
native gas. This is so for two reasons. First, it is
undisputed that a significant fraction of the gas contained
in the PPMU reservoir will be economically unextractable,
and if we were to treat the first 17.5 billion cubic feet of
blowdown gas as makeup gas, we would be ignoring the
reality that not all 17.5 billion cubic feet of injected gas is
going to be withdrawn from the reservoir, and that some
of that designated 17.5 billion cubic feet is actually native
gas which defendants are obligated to purchase. Second,
if we were to treat the first 17.5 billion cubic feet of gas
as non-native injected gas, defendants' obligation to
purchase gas would not be triggered until sometime in
April 1995,20 leaving only 15 months until the expiration of
the contract.

129A more equitable way to apportion damages under the

facts of this case is to require defendants to purchase the
aliquot portion of the daily gas extraction attributable to
the lands dedicated to the contract proportionate to the
ratio of native to non-native gas in the reservoir at the
commencement of blowdown.21 That is, if 20 percent of
the gas in the reservoir at the beginning of blowdown was
determined to be non-native injected gas, then WBIPC is
obligated to purchase 80 percent of each day's gas output
attributable to dedicated lands, beginning on the date
 blowdown operations commenced, and terminating on
July 6, 1996.

130The only testimony in the record on this point of which we

are aware is the testimony of Dr. Holditch, and even his
testimony is somewhat inconclusive. He stated that at the
start of blowdown, "there was 82 billion cubic feet of total
gas in the reservoir," and "[a]pproximately 17 billion of
that would have been the purchased gas, the make-up
gas, and the difference would be native gas." 5 J.A. 2340.
Using these figures, 21.3% of the gas in the reservoir is
non-native injected gas. However, later in his testimony,
Dr. Holditch stated that approximately 20 percent of the
gas in the reservoir is non-native. 5 J.A. 2345. As far as
we are able to tell, defendants did not tender a witness
who testified as to the percentages of gas in the
reservoir. Thus, we must remand to the district court for a
determination regarding the percentage of non-native gas
in the reservoir at the start of blowdown.

131Accordingly, to the extent that the district court's

conclusions are inconsistent with our holding that the
defendants are not obligated to purchase non-native
injected gas, they are reversed, and we remand to the
district court for entry of summary judgment in favor of
the pipeline on the injected gas issue, and for a
determination of the exact percentage of non-native
injected gas recoverable from the reservoir.

III. Prejudgment Interest

132The final issue which we must address is plaintiffs'

contention that the district court erred in refusing to
grant prejudgment interest on plaintiffs' damages award.
Under Wyoming law, which governs this inquiry, see
Wyoming Constr. Co. v. Western Cas. & Sur. Co., 275 F.2d
97, 105 (10th Cir.1960), "prejudgment interest is
recoverable ... on liquidated claims but not on
 unliquidated claims, with a liquidated claim being defined
as one that is readily computable by basic mathematical
calculation," Dunn v. Rescon Tech. Corp., 884 P.2d 965,
968 (Wyo.1994). The district court held that the claim was
unliquidated, because of the difficulty involved in arriving
at the amount of damages awarded. 4 J.A. 1486 (stating
that "the Court's multifaceted inquiry demonstrates the
difficulty with which the Court reached the amount due
and confirms that the amount due was unliquidated").
Clearly, the district court based its conclusion that
prejudgment interest was not warranted on its
determination that the contract price from August 1993 to
July 1996 was governed by the favored nations clause. As
discussed above, we hold that the district court
incorrectly reached the merits of the favored nations
issue, and we hold that the contract price for the relevant
time period should be set by reference to a fair value
price for the natural gas covered by the contract.

133Our reversal of the district court's decision regarding the

applicability of the favored nations clause changes the
calculus of the prejudgment interest issue. In Wyoming, "
[l]iquidated claims [are] those which are certain by
computation from the face of the contract, or which might
be made certain by reference to well-established market
values plus computation. " Chandler-Simpson, Inc. v.
Gorrell, 464 P.2d 849, 853 (Wyo.1970) (internal emphasis
omitted and emphasis added). In this case, the quantity of
natural gas defendants were required to purchase is a
matter of "mathematical calculation." Dunn, 884 P.2d at
968. The applicable price of that gas, however, is not
necessarily so simply computed. If the price were set by
the favored nations clause, which involves a complicated
inquiry indexed to other complex contracts, the claim
would almost certainly be unliquidated, as the district
court held. However, as noted above, Wyoming courts
clearly hold that a claim computable by reference to well-
established market values is a liquidated claim. We think
 the determination regarding whether the fair value price
of natural gas under the parties' contract is computed by
reference to well-established market prices is a
determination best made by the district court in the first
instance. This inquiry will necessarily involve questions of
witness credibility, which district courts are best
equipped to handle. See Johnson v. Hanover Fire Ins. Co.,
59 Wyo. 120, 137 P.2d 615, 619-21 (1943) (citing Kuhn v.
McKay, 7 Wyo. 42, 51 P. 205, 206 (1897), and stating that
where credible witness testimony is in conflict regarding
the amount of damages, the claim cannot be considered
liquidated, but where the credible evidence as to amount
or market values is "all to one effect," the claim is
liquidated). If the witness testimony regarding fair value
price is not really in conflict, or only differs by an
insignificant amount, or if one party's witnesses are much
more credible than the other's, the amount should be
considered liquidated and prejudgment interest should be
awarded.22

134Therefore, we vacate the district court's determination

that prejudgment interest is not warranted in this case,
and remand the case to the district court for a
determination of whether the fair value price of natural
gas applicable to the parties' contract can be "made
certain by reference to well-established market values
plus computation." Chandler-Simpson, 464 P.2d at 853.

CONCLUSION

135Accordingly, we AFFIRM the district court's conclusions in

part, REVERSE in part, and REMAND for further
proceedings, consistent with this opinion, to determine
the exact amount of damages due plaintiffs.

1 The contract was entered into by W.A. Moncrief on his

own behalf and that of his son, W.A. Moncrief, Jr. ("Tex").
 W.A. Moncrief died in 1986. The plaintiffs in this action
include Tex Moncrief, individually and as personal
representative of his father's estate, as well as various
trustees and others, all claiming under interests which
originated with W.A. Moncrief under the contract. For
expedience, we refer to the plaintiffs collectively, as
such, and to W.A. and Tex Moncrief together or by
individual names where necessary for clarity in context

2 The district court held that the plaintiffs are not entitled
to recover any damages for the period from January 1,
1985, to August 13, 1993, for any one of four independent
reasons: de facto price renegotiation; statute of
limitations (to 1989); waiver and estoppel; and laches.
Except for disputing the findings regarding de facto price
redetermination, the plaintiffs do not contest these
holdings in their briefs on appeal. Issues not argued in the
opening brief on appeal are deemed waived. See Jordan v.
Bowen, 808 F.2d 733, 736 (10th Cir.1987)

3 Both are joined as defendants and are referred to jointly

unless context requires individual references

4 For instance, Exhibits D-108 and D-113, cited by the

plaintiffs as favored nations exhibits, appear to have, at
most, only a tangential connection to the favored nations
clause. Exhibit D-108 contains only the barest reference
to the existence of a favored nations clause in the
contract, 10 J.A. 4515, and Exhibit D-113 contains no
mention at all of the clause, 10 J.A. 4518

5 For instance, Exhibits P-5, P-8, and P-9, introduced by the

plaintiffs, are documents dealing with the history of the
negotiation of the contract, and which contain some
mention of the existence of a favored nations clause and
the reasons for its inclusion in the contract. 8 J.A. 3516,
3523, 3525. These documents also contain information
regarding other contractual clauses, such as the area rate
clause and the price redetermination clause. Similarly,
 Exhibit D-118 contains a reference to plaintiffs' desire in
1993 to find comparison contracts that would qualify
under the favored nations clause, 10 J.A. 4525, but this
document tells the reader no more than that plaintiffs
were considering a favored nations argument, information
readily available from plaintiffs' original Complaint, 1 J.A.
5-6

6 Exhibits D-61, D-63, and D-64 were introduced to point out

that the favored nations clause, rather than the area rate
clause, set the contract price between 1978 and 1985. 10
J.A. 4288, 4292, 4295. Exhibits D-119 and D-119-A were
introduced to refute the plaintiffs' argument that the
contract price could never decrease, by showing that the
plaintiffs themselves, at one point, demanded that the
pipeline pay a contract price, set by the favored nations
clause, that fluctuated up and down over a period of
years. 10 J.A. 4526-55

7 The second part of Rule 15(b), which allows amendment

of the pleadings even where there is no implied consent
to try a new issue, is not applicable to the facts of this
case. That part of the Rule states that

[i]f evidence is objected to at trial on the ground that it is

not within the issues made by the pleadings, the court
may allow the pleadings to be amended and shall do so
freely when the presentation of the merits of the action
will be subserved thereby and the objecting party fails to
satisfy the court that the admission of such evidence
would prejudice the party in maintaining the party's action
or defense upon the merits.

Fed.R.Civ.P. 15(b).

There are two prerequisites to the invocation of this

portion of the Rule, neither of which are satisfied here.
First, the opposing party must object, at trial, to the
admission of evidence on the ground that it is not within
the issues raised by the pleadings. No such objection was
 ever lodged here--the only objection of any kind to Rule
15(b) amendment was WBIPC's counsel's protestations at
closing argument of the January 1996 trial that the
favored nations issue was not tried by consent. WBIPC
never objected to the admission of any favored nations
evidence, some of which it actually introduced, because
the evidence relating to the favored nations issue
introduced at trial was either innocuous or relevant to
some other issue in the case.

Second, after the objecting party has satisfied the first

prerequisite by objecting to the new evidence, the party
seeking amendment of the pleadings must move, under
Rule 15(b), for such amendment. A court may not sua
sponte invoke the second portion of Rule 15(b). We have
stated that "Rule 15(b) makes no provision for automatic
amendment when ... proper objections are made to the
admission of evidence." Dunn v. Ewell (In re Santa Fe
Downs, Inc.), 611 F.2d 815, 817 (10th Cir.1980); see also 3
James Wm. Moore et al., Moore's Federal Practice
15.18, at 15-77 (1998) (stating that "a court may not
amend without a formal motion if the opposing party has
objected to the evidence on the grounds that it is outside
the scope of the pleadings").

8 The district court made no finding as to whether the

contract was fully integrated, a separate ground for
barring parol evidence

9 See 15 U.S.C. 3373(a). Plaintiffs have acknowledged in

papers filed with both this court and the district court
that "regulation continued until the end of 1992," Br. for
the Appellants at 23, and that "Congress deregulated all
gas sales on January 1, 1993," Moncrief's Supp.
Memorandum in Support of Summary Judgment, 2 J.A.
539. See Natural Gas Wellhead Decontrol Act of 1989,
Pub.L. No. 101-60, 1989 U.S.C.C.A.N. (103 Stat.) 157

10 Similarly, Stauffer is readily distinguishable on its facts,

 and in any event provides no support for plaintiffs'
benchmark argument. The issue in Stauffer was whether
the parties intended to incorporate FPC vintaging
concepts into the price terms of their contract. See
generally Stauffer, 612 P.2d at 463-68. Neither party in
that case argued that the contract price constituted a
benchmark that could never subsequently decrease, and
therefore the Wyoming Supreme Court in Stauffer simply
never addressed that argument. We fail to see how
Stauffer provides any support for plaintiffs' benchmark
argument. Additionally, the natural gas contract at issue
in Stauffer was fundamentally different from the contract
at issue in this case. The Stauffer contract contained
base price provisions and an area rate clause, but, unlike
the contract at issue in this case, it contained no favored
nations clause. The court in that case interpreted the
area rate clause as a form of a favored nations clause, but
did so only in light of a "manifested [intention] to apply
[the area rate clause] in the manner usual to a favored
nations clause," and in light of the contractual absence of
an actual favored nations clause. Id. at 468

11 See Plaintiffs' Second Amended Complaint, 1 J.A. 350, at

pp 16-24

12 Over the years, the Moncriefs have exhibited aggressive

attention to their oil and gas contracts and leases, suing
to enforce rights under such contracts or leases at least
eight times, including this litigation. See Moncrief v.
Martin Oil Serv., Inc., 658 F.2d 768 (10th Cir.1981);
Moncrief v. Pasotex Petroleum Co., 280 F.2d 235 (10th
Cir.1960); Moncrief v. St. Regis Corp., No. TCA 85-7023-
WS, 1985 WL 17480 (N.D.Fla. Aug. 13, 1985); Moncrief v.
Louisiana Land and Exploration Co., 861 P.2d 516
(Wyo.1993); Moncrief v. Sohio Petroleum Co., 775 P.2d
1021 (Wyo.1989); Andrau v. Michigan Wisconsin Pipe Line
Co., 712 P.2d 372 (Wyo.1986); 6 J.A. 2442 (testimony of
Moncrief employee Kenneth Wilkes, who stated that he
could recall at least one other occasion, involving "El
 Paso Natural Gas," in which the Moncriefs initiated
litigation to enforce their contract rights)

13 By submitting this case to judicial resolution, the parties

have waived any claim to arbitration under p 7.5

14 Plaintiffs' expert witness, B. Pete Huddleston, testified

that the fair value price for the parties' contract gas after
August 1993 was $2.01 per MMBtu. 6 J.A. 2709.
Defendants' expert witness, Dennis Haider, testified that
the fixed fair value price was $1.835 per MMBtu, 7 J.A.
3292, but that the parties may have also used the
"monthly price on the CIG index as adjusted," 7 J.A. 3274,
which would have resulted in monthly fluctuations in the
price as reflected in expert witness R. Dean Graves'
damages exhibits, 11 J.A. 4626. On remand, it will be the
task of the district court to choose from among these
numbers, keeping in mind that the pipeline, through its
course of performance, has forfeited its right to claim any
number lower than $1.75 per MMBtu

15 While the district court must select the applicable

contract price from testimony and evidence presented at
the first trial, without hearing any additional evidence, it
may, once it has selected the contract price, entertain
additional witness testimony regarding the calculation of
damages using the contract price established by the
district court and the quantity of purchase obligations set
forth below

16 In his opening argument at the first trial, counsel for the

Moncriefs, in describing Exhibit P-38, stated as follows:

In Exhibit 38, [MDU] asks Moncrief to dedicate additional

acreage to it at the Powell II Unit. In all there are four
amendments to the contract which we believe add
acreage. There's controversy about one of them, whether
it adds or deletes acreage, but each of these amendments
... will bring more and more lands both in the Powell Unit
and outside the Powell Unit under the commitment to the
 contract, which of course means that Moncrief can't sell
the gas from these lands to other people.

5 J.A. 1943-44 (emphasis added)

17 For instance, plaintiffs' counsel, during opening argument,

stated that "there's another argument in this case about
whether or not this gas which comes from outside
sources, is injected into the reservoir, should be included
under the contract," 5 J.A.1945, and that there was "a
question about whether or not the right of first refusal
[granted to Mountain Fuel] destroys the dedication of this
[injected] gas to the contract," 5 J.A.1948. Plaintiffs'
counsel also introduced exhibits relating to plaintiffs'
argument that the pipeline's concerns about nitrogen
injection somehow estopped them from arguing that they
were not obligated to purchase non-native injected gas, 5
J.A.1976-77, and introduced exhibits relating to the
Mountain Fuel right-of-first-refusal argument, 5 J.A.1980-
87. Plaintiffs' counsel even went so far as to state that "
[w]e're trying to put in all the evidence relating to all the
issues in the case even though there's been a prior
ruling." 6 J.A. 2558

Defendants' counsel made similar arguments, stating that

"[o]ne of the other issues in this dispute is whether
WBI[PC] is obligated to purchase makeup gas ...," 6 J.A.
2881, asserting that the pipeline was not obligated to
purchase non-native injected gas, and introducing
exhibits relating to both the estoppel and right-of-first-
refusal arguments, 5 J.A.2090-91, 2100-04, 2107-08.

In addition, both parties quizzed witnesses about

repressurization programs generally and the PPMU
program specifically. For instance, plaintiffs' counsel
asked Tex Moncrief about his reasons for wanting to
include p 3.1(b) of Article III(A) in the contract, 5. J.A.
2200-01, and asked Claud Pickard whether MDU intended
"to purchase anything other than what you would have
 estimated as the native gas" in the reservoir, 5 J.A. 2416.
Plaintiffs also called Dr. Holditch to testify about the
amounts and percentages of non-native gas injected into
the reservoir. 5 J.A. 2340-44. For their part, defendants
called a professor of their own, Patrick Martin, who
offered his expert opinion that "there is no obligation
under the contract to purchase the gas that is attributable
to outside purchases," including injected gas. 6 J.A. 3026,
3027.

18 Wyoming courts have not spoken on the issue of whether

a contract's silence creates an ambiguity. We cite
Colorado courts' thinking on the issue because the
Wyoming state courts may find the position of their sister
state persuasive. See, e.g., State ex rel. Bayou Liquors,
Inc. v. City of Casper, 906 P.2d 1046, 1050 (Wyo.1995)
(looking to Colorado case law for guidance on an issue
not yet considered by Wyoming courts)

19 The fact that Mountain Fuel eventually decided not to

exercise its rights of first refusal on the non-native
injected gas is wholly irrelevant. By granting the right of
first refusal in the first place, plaintiffs demonstrated that
they did not intend to dedicate the injected gas to the
contract. Mountain Fuel's later unilateral decision to
decline to exercise its rights cannot transform the gas
from non-dedicated to dedicated, absent some sort of
agreement to that effect between plaintiffs and WBIPC

20 This date was calculated by looking to Dr. Holditch's

testimony that it would take approximately 500 days from
the beginning of blowdown--approximately December 1,
1993--to withdraw 17.5 billion cubic feet of gas. 5. J.A.
2346

21 Perhaps a helpful way to look at the problem is to

suppose that plaintiffs had elected to inject nitrogen
rather than non-native gas. In that event, the pipeline
would have been obligated to purchase all native gas
 after the nitrogen had been separated. The actual
situation here is similar, in that we must, when
calculating plaintiffs' damages, hypothetically separate
the non-native gas from the native gas

22 Because we require, as discussed above, that the district

court set a fair value price based on testimony given at
the first trial, without hearing additional testimony on the
issue, we do not anticipate that the related prejudgment
interest inquiry will require additional testimony. When
making the determination of the applicable price, the
district court should consider whether that price is
computable by reference to well-established market
values and whether the credible witness testimony at the
first trial on that point was in conflict, and determine
based on its evaluation of that testimony whether the
claim is liquidated